Smoking guns, dark secrets spilled in YouTube-Viacom filings

Purposefully engineering a system where the posting of infringing materials takes 5 minutes and the removal of such materials takes 2 weeks, while profiting on the sale of first the company and later advertising, is *NOT* innocent behavior.

Don't get ahead of yourself. YouTube as it stands today is innocent -- it is trying to comply with the law. Viacom is saying they got there on the shoulders of willful infringement.

The reality is that it's five minutes to upload copyright content (note that *all* uploaded content is copyrighted), but it takes much longer to determine whether something is infringing (i.e. copyrighted *and* uploaded without permission). The latter is what takes two weeks, because the copyright holder has to get a lawyer to draft a letter compliant with the DMCA, send it to YouTube, and have the video removed.

When discussions btw the founders indicate the intent to exploit that time gap to build traffic using known infringing material, this arbitrage loses it's innocence.

All this complaining about how hard it is tell when something is infringing is BS. Seriously. How much infringing content exists on Ars?

This ignores the history of YouTube completely. YouTube gained popularity with silly little videos that became Internet memes, like the dramatic hamster, or the Numa Numa guy. Then people started uploading longer, more serious pieces. The amount of content exploded as people started uploading anything they could think of.

While today I mostly watch pictures of cute cats or dirty walruses, when Youtube gained popularity I watched quite alot of Aqua Teen Hunger Force and South Park. And there still is a ton of music on Youtube.

When discussions btw the founders indicate the intent to exploit that time gap to build traffic using known infringing material, this arbitrage loses it's innocence.

All this complaining about how hard it is tell when something is infringing is BS. Seriously. How much infringing content exists on Ars?

This is where you keep missing the point, so I'll make it simple: YouTube did not know early on whether Viacom/Disney/<insert corporation here> was the one uploading the initial allegedly infringing material. If they did then the material is not infringing because it was uploaded with the copyright holders' permission.

Yes, the YouTube founders' mindset was bent pretty badly, and it's possible Viacom will win based on that (depends on what they are alleging) but in a strictly legal sense it could have much ado about nothing if the rights holders were doing the uploading.

And when it comes to Ars you have a similar -- though far less monetary -- situation. This comment that I'm posting is officially copyright by The Man Behind Merovingian. If I go to another site under another alias and paste this comment word-for-word to that site, I gave implicit permission for the repost. What Ars is unable to do, however, is determine whether posts here were copied from other sites *without* the permission of the original author.

How do you propose to resolve that issue? Sure, Ars can scan its comments and go Google searches on every one of them (a large task considering that "substantial copying" could mean infringement, not just entire copies), and it may even find that some comments originated from elsewhere. But how should Ars go about determining whether the copy was made with the permission of the original author?

Profiting off of copyrighted content is not illegal (I'm looking at you Joystickit). It's only criminal if that content is not authorized, and you are only personally liable if you know that it's not authorized (assumptions don't count as knowing, by the way) and don't do anything about it.

That this isn't a criminal copyright proceeding is the problem with your assumptions regarding the law. While Google may be somewhat shielded from the actions of the original founders (or not, that's one thing I wouldn't claim to know), it's clear the original founders knowingly and intentionally profited from infringing content. These are both huge potential liabilities in a civil case, where things get a lot murkier than just "innocent until proven guilty." The burden of proof is much lower, and the judge has much more leeway to make decisions regarding the spirit of the law. You can be innocent of a crime but still liable for your actions, and this could easily be swinging in that direction with that sort of evidence.

The lack of CYA when knowingly profiting off from less than squeaky clean behavior is astounding, really. Some simple re-wording of some of that would have made it a lot less damning. The thought process should have been: "We suspect 'significant' amounts of content may be infringing, should we try to determine how much? If we make any attempts to survey the content ourselves voluntarily, are we increasing our liability for any content we do find, when we can't even be sure as to permissions or lack thereof? If we take efforts to catalog or survey the content, are we then required to remove it even without a request/C&D, or at the very least contact owners? Maybe we should talk to a lawyer about this and shut up on it until otherwise directly contacted, because it's a huge can of worms." Things would look at least mildly better if they'd stalled at "well we can't even figure out what's infringing, so we need to wait on owners contacting us because what if we removed something non infringing" rather than framing it as what reads as an assumption that most of it IS infringing, but that it's better to profit from that until required to remove it than do anything else. Even if they were thinking the latter, they should have SAID the former, especially when using something that's so easily tracked down years later.

Some questions you just DON'T ask when you already know the answer. Especially not in writing. Especially not when phrasing them in "yay, let's ignore any legal ramifications and just profit as much as we can while we can off stuff we're practically sure is infringing" terms. It doesn't make what you're doing ok. It just makes it seem a little less intentionally and knowingly wrong, both of which can be factors in a civil case. You may be found against either way, but those can be huge factors in determining just how much.

When discussions btw the founders indicate the intent to exploit that time gap to build traffic using known infringing material, this arbitrage loses it's innocence.

All this complaining about how hard it is tell when something is infringing is BS. Seriously. How much infringing content exists on Ars?

This is where you keep missing the point, so I'll make it simple: YouTube did not know early on whether Viacom/Disney/<insert corporation here> was the one uploading the initial allegedly infringing material. If they did then the material is not infringing because it was uploaded with the copyright holders' permission.

Here's the simple point, which you keep missing: Youtube would be nothing without the early presence of viral content on their network. And Youtube still is nothing without the presence of top tier content. Because advertisers don't pay for user generated content.

Youtube wasn't in the business of supporting the control content providers had over their work... they were in the business of getting traffic fast, and chose a strategy of supporting the posting of pirated content with a wink and a nod.

The founders said 80% of youtube was infringing content. Those are people with the ability to run reports against actual data. They knew who they were ripping off. Why don't you explain that to me?

1. youtube can identify copies of a particular work2. youtube could have given content providers the ability to whitelist approved posts, rather than having to blacklist all pirate posts.

It's not that hard. There's no warez on Ars, because Ars banned it. Simple as that. Sure, the warez *could* have been posted by a marketing firm pretending to be Microsoft.... but let's not go running down philosophical rabbit holes when discussing real business.

Viacom is crying like a baby that their precious "content" is being stolen on YouTube. And while Viacom is whining, I'm watching Top Gear on YouTube, provided by the official Top Gear-channel.

The difference in philosophy between Viacom and BBC is simply staggering.

And just on principle: I find it appalling that ANY big media-company can whine about "misuse of content" or some other crap like that, looking at the various shenanigans they have pulled over the course of years.

This case is just one big joke. There is nothing important here. If Youtube/Google takes something down and I want to see it I will go somewhere else. If Big Content bitches about it I don't really care. Why should I? I have no motivation to do so. With that being said what we have here is a school yard fight between two rich kids over pocket money. It's fun to watch but it doesn't really mean anything. I'm really amazed that there are any entertainment businesses left. I would have thought that copyright infringement would have destroyed them all by now and that all copyright infringer's would be either in the poor house or in jail. HA! HA! HA! This is all PR bullshit. Time to move on to another article because none of this is going to affect anything important.

Here's the simple point, which you keep missing: Youtube would be nothing without the early presence of viral content on their network. And Youtube still is nothing without the presence of top tier content. Because advertisers don't pay for user generated content.

None of which is illegal.

Quote:

Youtube wasn't in the business of supporting the control content providers had over their work... they were in the business of getting traffic fast, and chose a strategy of supporting the posting of pirated content with a wink and a nod.

*Sigh* Once again: mindset aside, it is possible that the so-called pirated content was uploaded by the rights holders themselves, which case it is not pirated content. An outside chance, yes, but as Viacom has demonstrated, you'd have an impossible case being sure whether it's uploaded with permission or not.

Quote:

The founders said 80% of youtube was infringing content. Those are people with the ability to run reports against actual data. They knew who they were ripping off. Why don't you explain that to me?

1. youtube can identify copies of a particular work2. youtube could have given content providers the ability to whitelist approved posts, rather than having to blacklist all pirate posts.

1. YouTube cannot identify if the particular work was uploaded by the rights holder.2. ?? That has nothing to do with this.

I've already acknowledged that the founders had the Evil Otto mindset, and in some cases a guilty conscience goes a long way to conviction, but that's not the only element required. Walking into a police station and saying "I'm guilty" doesn't land you a sentence, there has to be an actual crime as well.

Quote:

It's not that hard. There's no warez on Ars, because Ars banned it. Simple as that. Sure, the warez *could* have been posted by a marketing firm pretending to be Microsoft.... but let's not go running down philosophical rabbit holes when discussing real business.

Who said anything about warez? We're talking about permission to host & reproduce (to an end user) copyrighted content. You're the one that brought up Ars and infringing content, and I provided a relevant response. Just because YouTube hosts videos and Ars hosts comments doesn't mean that they are not both about copyright.

It's pretty apparent from what little is actually available, that all three parties to this are partially "in the wrong". Simple solution;

Put all three sets of corporate leaders (yes, including the former YouTube owners) and their lawyers in a jail cell and give them break and water and one toilet and leave them there until they hammer out a contract.

It's not that hard. There's no warez on Ars, because Ars banned it. Simple as that. Sure, the warez *could* have been posted by a marketing firm pretending to be Microsoft.... but let's not go running down philosophical rabbit holes when discussing real business.

Who said anything about warez? We're talking about permission to host & reproduce (to an end user) copyrighted content. You're the one that brought up Ars and infringing content, and I provided a relevant response. Just because YouTube hosts videos and Ars hosts comments doesn't mean that they are not both about copyright.

The point is it's not that hard to keep pirated content off a website, if you want too. All this handwringing that youtube or Google can't / couldn't tell the difference between authorized and un-authorized content is BS.

Well, I would say these three utterly stupid scumbags - Chad Hurley, Jawed Karim and Steve Chen - sealed the case for Viacom for their idiotic emailing and Google shouldn't even go to court, rather just fuckin' settle it then sue these three little loser scumbags for not telling them the truth before they bough Youtube.

I dont see google winning this. Viacoms argument is pretty cut and dry when it comes to the DMCA rules. Once they remove DMCA protection from youtube the service will be sued into oblivion as other media conglomerates will come to rape its corpse. If sumery judgement goes to Viacom Google will be forced to settle for billions or lose billions more and youtube in court.

Viacom is such a huge company the whole not knowing what they decided to allow, while unfortunate and sloppy, is not exactly unexpected. I'm sure we could look at some other media outlets and see the same mistakes. I dont know if I believe the outright claims of fraud google is making about sending employees to kinkos. I'd need to see the proof for that.

The point is it's not that hard to keep pirated content off a website, if you want too. All this handwringing that youtube or Google can't / couldn't tell the difference between authorized and un-authorized content is BS.

Well, it's a damn shame that your opinion has nothing to do with US Law, because all your BS doesn't change one simple fact: Google and YouTube's operations are not illegal.

Choosing not to vet content before its posted is not against the law. Period. Read the damn DMCA.

The point is it's not that hard to keep pirated content off a website, if you want too. All this handwringing that youtube or Google can't / couldn't tell the difference between authorized and un-authorized content is BS.

Well, it's a damn shame that your opinion has nothing to do with US Law, because all your BS doesn't change one simple fact: Google and YouTube's operations are not illegal.

Choosing not to vet content before its posted is not against the law. Period. Read the damn DMCA.

As indicated in the article, the safe harbor provisions of the DMCA specify that the ISP should be unaware of infringement. Strategically encouraging and exploiting the time between infringement and DMCA takedown notice as a traffic building strategy is hardly unaware.

Youtube/Google is not a good guy here. How is Youtube/Google's ContentID business model of marketing to users who post infringing videos online different from MediaDefenders model of marketing to users sharing infringing music on peer to peer networks?

As indicated in the article, the safe harbor provisions of the DMCA specify that the ISP should be unaware of infringement. Strategically encouraging and exploiting the time between infringement and DMCA takedown notice as a traffic building strategy is hardly unaware.

You still don't get it. Thinking that something is infringing is not enough. Allowing people to drop off TV sets at your house that you think have been stolen is not enough. Wanting to commit a crime isn't (always) enough. The YouTube founders have the wiggle room that they didn't (and couldn't) know that it was infringing because it could have been uploaded by the copyright holders themselves.

That's where Viacom's practices come into play. By anonymizing the actual source of the content that Viacom gave permission to have uploaded, they themselves created the plausible scenario that the content was potentially not infringing at all, and there's absolutely no reason for YouTube to filter material simply because it's copyrighted because all content uploaded to YouTube is copyrighted by the originator.

As indicated in the article, the safe harbor provisions of the DMCA specify that the ISP should be unaware of infringement. Strategically encouraging and exploiting the time between infringement and DMCA takedown notice as a traffic building strategy is hardly unaware.

You still don't get it. Thinking that something is infringing is not enough. Allowing people to drop off TV sets at your house that you think have been stolen is not enough. Wanting to commit a crime isn't (always) enough. The YouTube founders have the wiggle room that they didn't (and couldn't) know that it was infringing because it could have been uploaded by the copyright holders themselves.

That's where Viacom's practices come into play. By anonymizing the actual source of the content that Viacom gave permission to have uploaded, they themselves created the plausible scenario that the content was potentially not infringing at all, and there's absolutely no reason for YouTube to filter material simply because it's copyrighted because all content uploaded to YouTube is copyrighted by the originator.

Do you get it now?

I completely get your point. You are off though in that YouTube's infringement happened from the start of the company, while Viacom's practices only came to play after YouTube was full of infringing content and become the #1 video site. Without a business model built on infringement, Viacom's marketers likely never would have posted anything to Youtube in the first place.

The fact that Viacom was posting to Youtube actually illustrates how damaging Youtube's model of wink-and-a-nod infringement was. It pressured Viacom's properties to engage the audience through a platform of piracy despite Youtube's complete disregard for Viacom's IP.

I completely get your point. You are off though in that YouTube's infringement happened from the start of the company, while Viacom's practices only came to play after YouTube was full of infringing content and become the #1 video site. Without a business model built on infringement, Viacom's marketers likely never would have posted anything to Youtube in the first place.

Do you get my point about timeline of events?

I see your point, but it still leaves me room to contend mine: what you claim to be YouTube's rise on known infringement is thrown into question by Viacom's practices. Whether Viacom itself started later or not, their practice shows that even from the beginning rights holders could have been uploading their content. In other words, you are damning YouTube from the beginning but you can't actually prove that their original content was infringing. Whether the founders believe it is or not is irrelevant.

I see your point, but it still leaves me room to contend mine: what you claim to be YouTube's rise on known infringement is thrown into question by Viacom's practices. Whether Viacom itself started later or not, their practice shows that even from the beginning rights holders could have been uploading their content. In other words, you are damning YouTube from the beginning but you can't actually prove that their original content was infringing. Whether the founders believe it is or not is irrelevant.

What the founders believe is entirely relevant due to the "unaware of infringement" requirement for safe harbor under the DMCA. The fact that the business fueled by rampant infringement has a whole host of complicated authorization questions is unsurprising.

Note that Vimeo -- ostensibly the same service has Youtube -- encounters none of this issues. That's because the Vimeo business model is actually about helping individuals publish content they themselves have created.

What the founders believe is entirely relevant due to the "unaware of infringement" requirement for safe harbor under the DMCA. The fact that the business fueled by rampant infringement has a whole host of complicated authorization questions is unsurprising.

Belief aside, the founders lacked proof that the uploaded clips were infringing, so in a legal sense I would hope they are considered unaware of infringement. All Viacom can do is point to their attitude and say "see, look, they had no respect for the law" but Viacom cannot declare with finality that the clips were in fact infringing. For all Viacom knows, Disney could have been doing the uploading, using the same anonymizing tactics that Viacom used later on.

Out of Viacom's 86 page document, you are cheering because one quote is disputable?

The real smoking gun is this one:

"Chen twice wrote that 80 percent of user traffic depended on pirated videos. He opposed removing infringing videos on the ground that 'if you remove the potential copyright infringements... site traffic and virality will drop to maybe 20 percent of what it is.' Karim proposed they 'just remove the obviously copyright infringing stuff.' But Chen again insisted that even if they removed only such obviously infringing clips, site traffic would drop at least 80 percent. ('if [we] remove all that content[,] we go from 100,000 views a day down to about 20,000 views or maybe even lower')."

I believe that the founders of youtube meant for the best... but then they discovered that what peopled wanted to post and watch was other peoples content. Under startup pressure, eventually they accepted infringement as a traffic building strategy. That acceptance is what compromises their status as a DMCA safe harbor and creates a huge inherited liability for Google.

Google has plenty of PR good will, and plenty of mouthpieces online to say that Viacom's suit has no merit. But quotes like Chen's above are going to be hard for any judge to overlook. Such quotes clearly indicate both awareness of infringement and the benefit to Youtube of allowing infringement to continue, knocking out two of the three requirements for DMCA safe harbor.

I believe that the founders of youtube meant for the best... but then they discovered that what peopled wanted to post and watch was other peoples content. Under startup pressure, eventually they accepted infringement as a traffic building strategy. That acceptance is what compromises their status as a DMCA safe harbor and creates a huge inherited liability for Google.

Google has plenty of PR good will, and plenty of mouthpieces online to say that Viacom's suit has no merit. But quotes like Chen's above are going to be hard for any judge to overlook. Such quotes clearly indicate both awareness of infringement and the benefit to Youtube of allowing infringement to continue, knocking out two of the three requirements for DMCA safe harbor.

Amazing...you still harp on infringement as if it's a foregone conclusion. Oh well, I guess some people just can't be swayed by the facts.

For all Viacom knows, Disney could have been doing the uploading, using the same anonymizing tactics that Viacom used later on.

Yea, I find that part of the argument on Google's side ridiculous. Why would it be in Viacom's interest to do that, especially if they know that incorrect DMCA takedowns will likely be issued and have to be corrected.

Yea, I find that part of the argument on Google's side ridiculous. Why would it be in Viacom's interest to do that, especially if they know that incorrect DMCA takedowns will likely be issued and have to be corrected.

Except that Google is speaking from experience, so it's not ridiculous. You have to remember that corporations are composed of lots of disparate units that don't always communicate well. It's not like TV where one person gives orders and everyone falls in line. This was probably done through several executive-level people, talking to people they trust, and so on, and to keep things somewhat quiet people didn't communicate everything. And if there's any organization that doesn't communicate well it's legal

Yea, I find that part of the argument on Google's side ridiculous. Why would it be in Viacom's interest to do that, especially if they know that incorrect DMCA takedowns will likely be issued and have to be corrected.

Except that Google is speaking from experience, so it's not ridiculous. You have to remember that corporations are composed of lots of disparate units that don't always communicate well. It's not like TV where one person gives orders and everyone falls in line. This was probably done through several executive-level people, talking to people they trust, and so on, and to keep things somewhat quiet people didn't communicate everything. And if there's any organization that doesn't communicate well it's legal

The CTO of Youtube, an employee of Google, was speaking from experience when he said that 80% of their traffic was from obviously infringing content.

Eddie Wilson wrote:With that being said what we have here is a school yard fight between two rich kids over pocket money. It's fun to watch but it doesn't really mean anything.

This right here.

In other news, if people can't get their stuff on YouTube, Hulu, or the like, they'll either go to a less reputable, less liable video site and watch their videos there. Or, they'll head to BitTorrent. Thusly, it would be in Viacom's best interests to just take the ad revenue and tracking data, because they'll get neither when people go to BitTorrent.

File sharing is dirty and you may not agree with it (or you may, hey) but the fact is, it is a reality and it gets Big Content nothing. On the other hand, Big Content wants you to fork over top dollar for packaged music and video in the stores. In the middle is sites like YouTube which have found a way to bring the content free to the end user and still pay the content provider. If they take that out, the consumer is left with the choice between free and paid, only they lose the free option where the content provider gets paid. I see no logic in removing that choice.

Another ironic twist: Viacom owns MTV, which contracted a little puzzle game studio out of Boston to make an interactive media player called Rock Band. So basically Viacom owns Rock Band, or at least a piece of it. This interactive media player lets you sing karaoke, only it penalizes you if you don't match pitch and tone. And with plastic guitars and a plastic drum set, you can play a souped-up version of Simon (remember that '80s toy?). And this thing, well, Rock Band 2, it comes with 84 songs, and there are free ones, but after that they want you to pay $2 a song to add content, vs. $1 to buy the non-interactive mp3s from iTunes. But the quality of the charting of these interactive songs varies, and people turn to YouTube to see previews of the top players playing songs on their instrument of choice. This may sound silly to some, but Rock Band downloadable tracks cannot be pirated, due to the delivery system. All delivered packages are paid for at premium pricing, making Viacom money. As a matter of due course, all of these YouTube videos do contain the song involved, and maybe that's infringement, but Viacom profits from it when people see that and make a purchase decision based on it. Doesn't really make sense.

The CTO of Youtube, an employee of Google, was speaking from experience when he said that 80% of their traffic was from obviously infringing content.

This is getting comical...he was speaking from ignorance. He had no proof it was "obviously infringing". He's an idiot, both in regards to the legal system and to his own facts. He could have said that 80% of their traffic came from Mars. Doesn't make it true.

One thing missing for me, is any documentation on Googles claims that Viacom was uploading videos in some back channel method from kinkos. What evidence is there to support that?

The evidence is in the paper trail. Video A is uploaded from a Kinkos; Viacom issues a DMCA takedown notice; uploader is notified of the takedown request; Viacom sends apology, states it was done with permission, and asks for reinstatement of video. Enough of those incidents creates a pattern.